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SECOND DIVISION

November 20, 2001

No. 1-00-1586

JUSTICE GORDON delivered the opinion of the court:

Plaintiff Jennifer Pavlik appeals from the circuit court's dismissal of her complaintagainst defendants Bruce Kornhaber and Community Counseling Associates (CCA) undersection 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)). The circuit courtheld that because Pavlik alleged only personal injuries, her negligence, intentional infliction ofemotional distress, nuisance, fraud, and breach of fiduciary duty counts were all barred by thetwo-year statute of limitations set out in section 13-202 of the Code of Civil Procedure (735ILCS 5/13-202 (West 1996)). In this appeal, Pavlik argues that the residual 5 year limitationsperiod (735 ILCS 5/13-205 (West 1996)) applies to her nuisance, fraud, and breach of fiduciaryduty counts and that defendant perpetrated actionable conduct against her within the two-yearlimitations period for the negligence and intentional infliction of emotional distress counts. Forthe reasons stated below, we reverse the circuit court's holding on the intentional infliction ofemotional distress counts, and affirm the court's dismissal of the negligence, nuisance, fraud, andbreach of fiduciary duty counts.

BACKGROUND

Defendant Bruce Kornhaber is a principal and professional staff member of Kornhaber,Manka & Associates, Ltd., doing business as Community Counseling Associates (CCA), acompany that contracts with counselors, therapists and licensed professionals to provide mentalhealth services to the public. According to Kornhaber's affidavit, attached to his section 2-619motion to dismiss, he is not a medical doctor, nor is he a clinical psychologist, nor a socialworker. Kornhaber has a Ph.D. in counseling and psychology, is certified by the National Boardof Certified Counselors, and works as a therapist. The parties do not dispute that in 1982,Kornhaber undertook two therapy sessions with Pavlik, then a teenager, through CCA. In Juneof 1994, Pavlik was hired by CCA as a therapist in her first professional position after receivingher Master's of Social Work. Pavlik's mother was also employed at CCA at this time.

Pavlik brought suit against both Kornhaber and CCA on November 1, 1996. Asamended, the complaint alleges a total of nine counts, the first five against Kornhaberindividually and the last four against CCA. Count I alleges negligence by Kornhaber inconducting therapy with Pavlik during 1994. Count II claims nuisance arising out of Kornhaber'salleged misrepresentation of himself as a psychologist and clinical psychologist in violation ofthe Clinical Psychologist Licensing Act (225 ILCS 15/1 et seq. (West 1996)). Count III allegesthat Kornhaber committed fraud by this misrepresentation of his credentials; count IV allegesbreach of fiduciary duty and count V sounds in intentional infliction of emotional distress. Counts VI and VII allege both respondeat superior and direct corporate negligence against CCA. Count VIII alleges direct nuisance by CCA and count IX alleges direct intentional infliction ofemotional distress.

In the common facts section of her complaint, Pavlik states that as a requirement of heremployment as a fledgling therapist with CCA, she received both professional supervision andcounseling from Kornhaber. During the course of this dual relationship, Pavlik alleges thatKornhaber initiated a campaign of egregious and offensive sexual overtures and used his positionas a therapist and employer in an attempt to get her to submit to his desires. Pavlik's complaintalleges that as a result of Kornhaber's behavior she became confused, anxious, and depressed,that her self-esteem plummeted, that her trust in the psychotherapeutic process was impaired, thather career development was impeded, and that her general psychological condition worsened. Byher complaint, Pavlik sought money damages to compensate for these harms.

In support of her allegations, Pavlik's pleadings include at least 14 different memos,letters, and handwritten notes addressed from defendant which make various sexual suggestions,requests, and demands. An August 6, 1994, "Weekly Status Meeting" memo from Kornhaberasks Pavlik to bring an "Open Mind, Warm Heart & Heavy Breathing" to their next "FALLINGIN LOVE WITH YOU MEETING." An August 14, 1994, letter with a CCA header discusseshis "clitoral envy" and states that "under the terms of the contract you will be responsible to limityour orgasms to a one-to-one ratio in exchange for terms such as travel expenses, raises, vacationpay, etc." Typed undated correspondence from Kornhaber elaborates on an infatuation with herunderarms and the inside of her nose. Pavlik alleged that during one face to face encounter,defendant actually stuck his tongue in her nose. In addition, Pavlik's pleadings include a largepacket of explicit advertisements for "erotic phone fantasies," including pictures, allegedly sentto her by Kornhaber. Some of the notes from defendant are addressed to "Jen Pelvic." Themedical affidavit attached to plaintiff's complaint as required under section 2-622 of the Code ofCivil Procedure (735 ILCS 5/2-622 (West 1996)), details that numerous times throughout heremployment Kornhaber required Pavlik to stay in the office after work hours and to meet himoutside the office. These meetings allegedly involved unwanted sexually explicit discussions andunwelcome and offensive touching or gestures. Kornhaber allegedly subjected Pavlik to longdiscussions about intimate relations with his wife and explicit fantasies about Pavlik herself. Pavlik's complaint indicates that from its inception she found this behavior offensive andunacceptable.

According to the complaint, this behavior continued from July 1994, until Pavlikterminated her employment at CCA on November 1, 1994. In Pavlik's answer to the bill ofparticulars demanded by defendants, she indicates that formal clinical supervision andpsychotherapeutic counseling with Kornhaber took place two or three times per week from July27 through October 17, 1994, at various locations including the CCA offices, restaurants, andKornhaber's home. Pavlik further admits that October 17 was the last date of any formalpsychotherapeutic counseling by Kornhaber. Based upon this statement, two years and fourteendays passed between the date of the last psychotherapeutic counseling session and Pavlik's initialfiling on November 1, 1996.

Pavlik's complaint also includes a November 4, 1994, letter sent by Kornhaber to Pavlikand her mother which, while admitting "I believe I must be some, all or part of, the reason foryour feeling the need to depart so abruptly," simultaneously insists that he had "been sensitive" toPavlik's needs and "tried to accommodate you and your issues." Kornhaber went on to say,"[s]ince I have no way of knowing for sure, I will assume that my 'zaniness' confrontations andunwillingness to minimize conflict in a personal relationship contributed to your decisionJennifer." The note concluded by saying: "In any event, it's clear that a short time ago that bothof you felt good with me and the clinic. Suddenly over a three week period those positivefeelings changed. Although, I'm not sure about how all this happened, I am sure that I havegrown to care about you both." The note was signed "Sincere love." On November 8, CCA senta letter to Pavlik indicating that she had not followed proper procedures in terminating heremployment and that her payroll check would be withheld until all such procedures werefollowed. Pavlik's attempt to collect her past wages was unsuccessful and she subsequentlypursued relief through the Illinois Department of Labor. Two years later, in November 1996, theDepartment of Labor issued a wage payment demand ordering defendant to pay plaintiff sumsowed her. In her corrected second amended complaint, Pavlik also alleges that she had a phoneconversation with Kornhaber on November 3, 1994, the contents of which were not disclosed.

Pavlik's initial complaint alleged one count each of negligence, nuisance, and fraudagainst Kornhaber, and one count of respondeat superior negligence, direct corporate negligence,and nuisance against CCA. The trial court dismissed this complaint in May 1998 based ondefendants' challenge to plaintiff's section 2-622 affidavit. 735 ILCS 5/2-622 (West 1996). Aftertwo additional dismissals, plaintiff submitted her corrected second amended complaint, describedin detail above, which is at issue in this case. Defendant filed a motion to dismiss based both onthe statute of limitations, under section 2-619, and on insufficiency of the pleadings, undersection 2-615. 735 ILCS 5/2-615; 735 ILCS 5/2-619 (West 1996). In the order being appealedhere, the trial court held that all counts of the complaint were barred by the statute of limitationsand granted defendants' section 2-619 motion to dismiss with prejudice. Although the trial courtentered no written opinion, the transcript of the hearing reveals that the trial judge also found thatthe allegations in the complaint were insufficient under section 2-615, but did not include this inthe order because the section 2-619 ruling was fully dispositive. This appeal followed.

ANALYSIS

Standard of Review

We review de novo the dismissal of a complaint under section 2-615 (Doe v. McKay, 183Ill.2d 272, 274, 700 N.E.2d 1018, 1020 (1998)) and section 2-619 (Health Cost Controls v.Sevilla, 307 Ill.App.3d 582, 586, 718 N.E.2d 558, 562 (1999)). Shaker and Associates, Inc. v.Medical Technologies Group, Ltd., 315 Ill. App. 3d 126, 131, 733 N.E.2d 865, 870 (2000). "Inruling on a section 2-619 motion, a court must accept as true all well-pleaded facts in plaintiff'scomplaint and all inferences that can reasonably be drawn in plaintiff's favor." Hermitage Corp.v. Contractors Adjustment Co., 166 Ill.2d 72, 85, 651 N.E.2d 1132, 1139 (1995). We will grantthe motion to dismiss only if the plaintiff can prove no set of facts that would support a cause ofaction. Chicago Teachers Union, Local 1 v. Board of Education of City of Chicago, 189 Ill. 2d200, 206, 724 N.E.2d 914, 918 (2000). Likewise, when the sufficiency of a complaint ischallenged by a section 2-615 motion, all well-pleaded facts are taken as true and this court mustdetermine whether the allegations of the complaint, when interpreted in the light most favorableto the plaintiff, are sufficient to establish a cause of action upon which relief may be granted. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 490-91, 675 N.E.2d 584, 588 (1996).

I. Negligence/Malpractice Count

In count I of her complaint, Pavlik contends that throughout the summer and fall of 1994 defendant Kornhaber negligently rendered therapeutic services to her which caused her to sufferanxiety, depression, and confusion. According to Pavlik, Kornhaber's hybrid relationship withher as former therapist, present therapist and clinical supervisor was a deviation from thestandard of care required of therapists and that his campaign of sexual overtures was a grossbreach of the duty he owed her in these relationships. In his motion to dismiss, Kornhabercounters that any alleged negligence occurred outside the two-year statute of limitations forpersonal injury actions. In her brief on appeal, Pavlik responds that the continuing course ofnegligent treatment doctrine tolled the running of the statute of limitations and rendered theaction timely. We agree with defendant that any actions which may have constituted negligenceor malpractice occurred outside the statute of limitations.

Count I is characterized intermittently by both plaintiff and defendant as a "malpractice"and a "negligence" claim. Because plaintiff's first response to the statute of limitations defense isbased specifically in malpractice precedent, we will begin our analysis within this branch ofnegligence jurisprudence. Plaintiff does not dispute that the statute of limitations for this countruns two years from the time the cause of action accrued. 735 ILCS 5/19-202. Nor does plaintiffdispute that the last formal session defendant conducted with her occurred on October 17, 1994:two years and fourteen days before plaintiff filed the instant suit. Plaintiff urges this court to findhowever that she was the victim of a continuous and unbroken course of negligent treatment suchthat, under malpractice cases beginning with Cunningham v. Merrill Huffman, 154 Ill.2d 398,609 N.E.2d 321 (1993), the statute of limitations did not begin to run until the negligenttreatment concluded. Plaintiff argues that the negligent treatment did not conclude with her finalformal session on October 17. Instead, plaintiff asserts that the therapeutic relationship betweenher and defendant extended outside the formal "session" context and that in meetings, officeinteractions, and during the clinical supervision that continued through the end of heremployment, Kornhaber misused the counseling relationship between them and misusedtherapeutic and counseling techniques in an attempt to further his sexual agenda. Plaintiff thusconcludes that the "negligent treatment" did not end anytime prior to defendant's November 4,1994, letter to her. We are not persuaded by plaintiff's efforts to bring her suit in line with thismalpractice doctrine.

The Cunningham court developed the doctrine of continuing course of negligenttreatment to avoid the harsh results that can arise from the statute of repose (735 ILCS 5/13-212(a) (West 1996)), which bars medical malpractice suits four years from the date of the actcausing the injury, regardless of when the plaintiff discovers it. Cunningham, 154 Ill. 2d at 406,609 N.E.2d at 325. The court held that if the plaintiff can demonstrate (1) a continuous andunbroken course of negligent treatment, and (2) that the treatment was so related as to constituteone wrong, then the plaintiff may avoid the statute of repose. Cunningham, 154 Ill. 2d at 406,609 N.E.2d at 325. The court recognized that this statute was designed precisely to protectphysicians from the "long tail" liability exposure that the discovery rule exception to the statuteof limitations created. Cunningham, 154 Ill. 2d at 406, 609 N.E.2d at 325. But because apatient is often forced to rely on whatever information the negligent doctor provides (Hertel v.Sullivan, 261 Ill. App. 3d 156, 161, 633 N.E.2d 36, 39 (1994)), the Cunningham court created avery limited exception to the statute of repose to alleviate its effect in specific cases. Cunningham, 154 Ill. 2d at 406, 609 N.E.2d at 325. In Cunningham itself, the court held that aplaintiff might be able to establish ongoing negligent gynecological treatment by physicians whoserially implanted and then subsequently removed two contraceptive devices from her uterus.

We are not persuaded by the plaintiff's broad definition of the word "treatment" underwhich she attempts to capture communications between her and defendant after the October 17session. One court considering the applicability of the continuing negligent medical treatmentdoctrine has noted that it is inherently limited by two key words: "medical" and "treatment." Turner v. Nama, 294 Ill. App. 3d 19, 30 689 N.E.2d 303, 311 (1997). In the malpractice context,treatment is defined as " the action or manner of treating a patient," (Turner, 294 Ill. App. 3d at30, 689 N.E.2d at 311) and "the application of remedies with the object of affecting a cure;therapy." The American Heritage Dictionary of the English Language, 1367 (1981). The Turnercourt held that failure to ensure that the decedent was notified of unfavorable test results was notan act of "treatment" within the plain meaning of the word and thus could not trigger theapplication of the Cunningham doctrine. We share the Turner court's view that the wordtreatment operates to limit the application of the doctrine and that defining treatment to include awide spectrum of communication would abrogate this function. To the extent that this count ischaracterized as malpractice, keeping the context of formal treatment as a boundary for liabilityprovides a meaningful and discernable point from which the statute of limitations can becalculated. Interactions or communications that are not treatment may indeed be actionable (seethe discussion of intentional infliction of emotional distress below) but not as malpractice.

In the instant case, Pavlik's bill of particulars states that her last "psychotherapeuticcounseling" session with defendant occurred on October 17, 1994. We find plaintiff's admissionof the date of the last session, offered before the statute of limitations issue fully arose in the trialcourt, to be the logical and reasonable mark of the end of her treatment. Neither of the letterssent to plaintiff after that date, nor the wage dispute that later ensued can be captured by even agenerous definition of treatment.⁽¹⁾ We are therefore unpersuaded that the continuing course ofnegligent treatment doctrine brings plaintiff's suit within the statute of limitations.

Pavlik's next argument evolves out of her continuing course of negligent treatment claim,but sounds in the broader discourse of negligence, rather than malpractice. Pavlik contends thatshe was obligated to enter into a therapeutic relationship with Kornhaber as a condition of heremployment as a fledgling therapist.⁽²⁾ Pavlik claims that this relationship gave rise to acontinuing duty of care which extended beyond the temporal limits of the formal therapeuticrelationship, which ended on October 17, 1994. Pavlik argues that Kornhaber breached this dutyby his interactions with her through the November 3 phone call, the November 4 letter, theNovember 8 letter, and perhaps through the institution of a wage dispute which she alleges wasdesigned solely to continue some form of contact with her. In essence, plaintiff posits that thetherapeutic relationship is qualitatively different than other professional relationships withrespect to the duty of care owed, in that any contact between patient and therapist can havetherapeutic elements and therefore trigger the professional duty of care that applies to formaltreatment.

To establish negligence, plaintiff must plead and prove that defendant owed her a duty,that defendant breached that duty and that the breach was the proximate cause of plaintiff'sinjuries. Hills v.Bridgeview Little League Assn, 195 Ill. 2d 210, 228, 745 N.E.2d 1166, 1178(2001). Illinois courts have recognized that therapists owe a duty to those to whom they providetherapy:

"we think that the very nature of the therapist-patient relationship * * * gives riseto a clear duty on the therapist's part to engage only in activity or conduct which iscalculated to improve the patient's mental or emotional well-being, and to refrainfrom any activity or conduct which carries with it a foreseeable and unreasonablerisk of mental or emotional harm to the patient." Horak v. Biris, 130 Ill. App. 3d140, 145, 474 N.E.2d 13, 17 (1985). See also, Holladay v. Boyd, 285 Ill. App. 3d1006, 675 N.E.2d 262 (1996) (recognizing that psychiatrist had duty of care topatient); Corgan v. Mueling, 143 Ill.2d 296, 307, 574 N.E.2d 602, 607 (holdingthat unregistered psychologist who held himself out as qualified to rendercounseling owed a duty of care to patient).

Although the pleadings do not allege that Kornhaber is a social worker, medical doctor, orregistered psychologist, he is a Ph.D. and certified counselor and did, as revealed in well-pleadedfacts, hold himself out as professional, qualified to render counseling and psychotherapy. Assuch, Kornhaber should not be permitted to escape being held to a therapist's duty of care byfailing to register or by configuring his credentials in a certain way. We are thus satisfied thatdefendant had a professional duty of care as a therapist toward plaintiff to refrain from activitywhich carried a foreseeable and unreasonable risk of emotional harm.

The cases recognizing a therapist's duty of care have also noted that therapy involves thephenomena of transference and countertransference. The Horak court noted that

"The 'transference phenomenon' * * * has been defined in psychiatric practice as 'aphenomenon * * * by which the patient transfers feelings towards everyone else tothe [therapist]' * * * . The mishandling of this phenomenon, which generallyresults in sexual relations or involvement between the psychiatrist or therapist andthe patient, has uniformly been considered as malpractice or gross negligence inother jurisdictions * * * ." Horak, 130 Ill. App. 3d at 146, 474 N.E.2d at 18(quoting Aetna Life & Casualty Co. v. McCabe, 556 F.Supp. 1342, 1346 (E.D. Pa.1983)).

Accepting as we must all well-pleaded facts in the complaint as true, we find plaintiff hassufficiently alleged that defendant breached his duty by overtly and repeatedly pursuing sexualinvolvement with her during their therapeutic interactions.

But the question remains: did this breach of duty occur within the statutory period? Recognizing the significant impact such a breach may have on a person seeking therapy, the lawmust still ascertain the point at which this duty, and the therapists' liability as a professionalpractitioner, ends. Horak, Holladay, and Corgan all involve mishandling transference byinappropriate sexual behavior that occurs during the course of the therapeutic relationship. Thecases do not address the question of potentially inappropriate behavior after therapy ends. Plaintiff cites no case law to support an extension of duty beyond the clear boundary of thetreatment window. We recognize that the proximity and continuity of the inappropriate behaviorthat allegedly occurred before and after the October 17 end of treatment reveals the inherentharshness in drawing such a bright line. Legal duty, however, must have a boundary and even inthe context of the highly complex therapeutic relationship, liability under the professional duty ofcare cannot be interminable. Illinois case law indicates that the therapist's duty exists during thecourse of formal treatment. Horak 130 Ill. App. 3d 140, 474 N.E.2d 13; Holladay, 285 Ill. App.3d 1006, 675 N.E.2d 262; Corgan, 143 Ill.2d 296, 307, 574 N.E.2d 602, 607. We therefore findthat plaintiff cannot establish that defendant owed her a duty as a therapist to refrain frompotentially harmful conduct once the formal treatment relationship ended and thus that hernegligence claim is barred by the statute of limitations. This discussion is not oblivious to thefact that there may be a psychological impact from interactions that occur post-treatment whichrelate back to the relationship previously established in the therapeutic context. That impact isreflected in our determination of plaintiff's intentional infliction of emotional distress count,rather than in the count pleading malpractice. Moreover, an ongoing psychological dynamicwhich may survive the formal treatment period is suggested to a limited degree by statute.

Pavlik's pleadings contain a reference to the rules promulgated under the ClinicalPsychologist Licensing Act (225 ILCS 15/1 et seq. (West 1996)) that define "Unethical,Unauthorized and Unprofessional Conduct," the commission of which may subject a practitionerto discipline. 68 Ill. Admin. Code 1400.80 (1996). Specifically, these rules state that "[t]hecommission of any act of sexual misconduct, sexual abuse or sexual relations with one's client,patient, student supervisee or with an ex-client within 24 months after termination of treatment"can subject the therapist to discipline. 68 Ill. Admin. Code ch. VII